Unseen force

In 1965 when I first started working as junior secretary with Donaldson & Alexander in their offices at 127 St Vincent Street, the role of the solicitor was very different to that of today. The solicitor ranked with the minister and the doctor as a pillar of the community. They wore pinstripe suits and bowler hats and lunched in the Ivy restaurant. Clients from the general public dressed in their Sunday best to come and see them at a time to suit the solicitor, took their word as law and would never ever have questioned them or made demands. There were no dictation machines, faxes or word processors (far less computers!), and firms who had photocopiers and telex machines were considered very modern in their approach to business. Correspondence was primarily by letter and it could take several days for a reply to a query to arrive on your desk. Lady solicitors were a rarity and when the firm took on a female trainee they were considered to be very enlightened and forward thinking.

So what has changed? Well, practically everything. The modern-day solicitor, thanks to the arrival of computers, is snowed under with email messages on arriving at the office every morning. They are expected to be self-sufficient (even at partner level) and to deal with most correspondence and phone calls from clients themselves. Secretaries are becoming a rarity, although the executive assistant or PA has managed to survive albeit with a totally different job description. Clients are more demanding at all levels and the 9 to 5 day with a leisurely lunch hour is a thing of the past. Stress levels among the profession are continuing to rise, and juggling work and home life is more and more difficult.

All of this has given rise to a new member of the legal profession in Scotland – the paralegal. Paralegals have evolved in some cases from the efficient secretary/PA who knew how to do the work but didn’t have a qualification to prove it. Others have chosen the route of obtaining a formal qualification in law but have not taken up the traineeship required to become a practising solicitor. The employment of paralegals in Scotland has grown at a tremendous rate, particularly over the past five years when solicitors have begun to recognise the ability of properly trained support staff to lighten their load and provide invaluable assistance in most areas of legal work. No longer is there the accusation of “job stealing” from younger solicitors, who are grateful for the support paralegals can offer, and partners have realised that you can have a valuable member of staff who will not, in due course, expect to become a partner of the firm (though if we allow LDPs that could change in the future!). Competent and talented people at all levels in the legal profession provide a sustainable competitive advantage and are a key asset of any business. It is people who develop and implement strategies and it is people who deliver services directly to clients.

Recognition and regulation

Due to the growth in the number of paralegals now being employed both in private practice and in-house companies, it is imperative that the role is regulated and the Scottish Paralegal Association is currently working closely with the Law Society of Scotland to formalise a structure for paralegals which is acceptable to both employee and employer alike. The Society has recently become more proactive in providing general support to the SPA, thus freeing up those serving on the committee to become more active in raising the profile of the Association and working on new developments.

Members of the legal profession as a whole currently appear to be unaware that the SPA exists, far less that its members are graded according to qualifications and experience. In order to enrol as a member it is necessary for the applying paralegal to have their current employer sign off their application, stating that they are currently employed as a paralegal and the grade they can be allocated at that time. (Grades are currently under review but at present are as shown in the box.) A member’s current grade is specified in their “practising certificate” issued annually on renewal of their membership. Each annual renewal application also requires to be signed off by the employer, confirming that the member still works at the grade they have been allocated. This could go up or down! In addition members carry out CPD on an annual basis to ensure they are kept up to date with recent developments in their area of work, and finally they follow a code of conduct.

As for wider recognition of their status, Strathclyde University in association with Central Law Training has for some years provided a formal specialist paralegal qualification; and from this September Caledonian University in conjunction with Reward Training will also offer training. Paralegals’ work has gained recognition at the Scottish Legal Awards as well – Pamela Gorman, a fee earner who works in McGrigors’ real estate team for clients including Threshers and the Ministry of Defence, won the title Paralegal of the Year at this year’s awards.

A mark of competency

The SPA grading, in particular, is important as it ensures employers have verification of the current levels of competency and responsibility they can expect from the employee, and the employee can be encouraged through training to progress to the highest grade, thus providing a career path. This can also be used as guidance to salary grading, an area on which the SPA is frequently asked to advise.

The resources of the SPA are available to both members and employers alike to assist with any issues which may arise. We would therefore urge any employer of paralegals to ensure their paralegals register as members of the SPA, details of which can be found on our website at www.scottish-paralegal.org.uk, and also when interviewing for new paralegal positions within their firms to consider the advantage of employing members of SPA. Should you wish a meeting to explore the opportunities for employment of paralegals or gain further insight into the role, please do not hesitate to contact us.

Christine Lambie is President of the Scottish Paralegal Association

A view from the Society

The growth in the number of paralegals and the increasingly complex role they play has created a need for new working practices, which will not only ensure standards across the profession but allow paralegal staff to develop fully the skills and knowledge required of the position today.

The Scottish Paralegal Association (SPA) has introduced a code of conduct, CPD scheme and grading structure for its members, which highlight just some of the reasons the Society is delighted to announce closer working links with the association. By providing help with administrative support, IT, and membership management, the Society is able to free up time for the SPA’s elected officials, allowing them to concentrate on management of the organisation and an exciting package of new developments.

One of the big projects for SPA will be establishing a working party to develop further a grading structure and careers path for paralegals. This illustrates the common ground that the SPA and the Society often share. The Society currently has projects underway which will examine all the elements of legal education in Scotland, and its investment in research and development in fields such as competency statements, assessment, and defining “professionalism” can be shared to benefit the SPA. At the same time, the profession gains from being involved in a process that will inform the standards to which paralegals, in their offices, will operate.

The Society is taking an increasingly inclusive approach in fulfilling its functions, trying to work with the range of people and groups, dare I say “stakeholders”, within the legal services field in Scotland. Whether it is increased lay representation on our committees, public consultation on education issues, or our new partnership with the SPA, we want to ensure that the Society and solicitors’ profession is contributing to, and benefiting from, a wide range of perspectives on law and regulation in Scotland.

We are delighted that a little support from us is allowing the SPA to develop a range of projects independently – especially when we also reap the benefits of a more integrated approach.

Neil Alan Stevenson is Deputy Director of Education and Training at the Law Society of Scotland

A valuable – and loyal – workforce

Thorntons is a long established firm having offices in Arbroath, Dundee, Forfar, Edinburgh and Perth. The firm currently comprises 30 partners and 285 staff. Of these staff, some 30 are what might be termed “paralegal” employees. We do not, in fact, tend to use the term “paralegal” very much at all, as it ill defines the roles that many of these employees fill. However, for the purposes of this note I will adopt it.

Of the paralegals currently employed by Thorntons, five are in litigation, 14 in private client, two in business law and nine in property services. It will be seen that there is a wide variety of work that they undertake. This includes conveyancing, litigation, company secretarial administration, and what might be termed “traditional” private client areas such as the administration of trusts, executries and personal taxation.

The vague definition of “paralegal” poses certain questions. For example, Thorntons employs a number of other employees who undertake quasi-legal roles that would traditionally have been undertaken by solicitors. Within our financial services and estate agency teams, some at least of the roles currently undertaken by staff would at one time have been undertaken by solicitors (and still are in certain practices), so the actual number of “paralegals” employed, if one broadens the definition, would be nearer to 50. However, for present purposes I have taken paralegals to mean persons undertaking what is recognised as “legal” fee-earning work, rather than property or investment services-related matters.

Where do they come from?

It is still true to say that most paralegals are home grown. That is, members of our own staff who have acquired skills either through the passage of time, perhaps working in a support role as a secretary, or having been given specific training to acquire appropriate skills in a particular role. However, these days there are other routes to employing paralegals, and these include recruiting an existing paralegal from a competitor; transfer of a fee earner from another profession (for example with accounting or taxation skills); and employing an individual who has a qualification such as the law degrees now offered by certain institutions which do not, as yet, qualify you to be admitted to traineeship and the profession.

Learning the job

Irrespective of the background to the individual paralegal’s employment, our staff are encouraged to undertake appropriate training such as SOLAS [Society of Law Accountants in Scotland] or a dedicated paralegal course where appropriate. In addition, paralegals, as members of Thorntons’ fee-earning staff, are encouraged to attend internal training seminars and suitable external seminars.

It seems to me that most paralegals acquire a very high level of specialisation in what may be a very narrow area of work, rather than the perhaps more broadly based legal expertise expected of solicitors. A high level of specialisation has an obvious advantage in terms of the particular skills which the firm can offer clients and means that many paralegals are often more highly skilled than legally qualified employees in their particular areas of work. This is especially true of junior members of the legally qualified staff. The obvious disadvantage to this is that without perhaps considerable additional training it is not always easy to transfer paralegals between roles.

A career structure

Thorntons operates a system of grades applicable to paralegal status, which the paralegal employees work their way through with the possibility of advancing to a senior status equivalent to the earning capacity of a senior solicitor (although this is rare). There cannot, of course, be any possibility for partnership for a paralegal as matters stand. One consequence of this, at least in my experience, is that paralegal employees tend to be less likely to move from job to job, which is a very considerable advantage to any firm in terms of staff turnover and the consequent effects on training needs.

Facing the future

It would appear that we are facing huge changes in the delivery of legal services in the UK, and Scotland will be no exception. I firmly believe that the effective use of paralegal employees will enable the profession to compete with new providers of legal services and to undertake certain work types using non-legal resources. The employment of paralegal staff can help many firms improve their gearing of fee earnings to partners without the cost consequences (not to say the recruitment difficulties) of acquiring additional qualified staff.

Nicholas Barclay is Managing Partner of Thorntons

Back from the edge

November 2003 – mid-evening in deepest and darkest Lanarkshire. A scene which will be familiar to all such practices. Three weary partners prepare to leave the office after yet another day engaged in the increasingly stressful rigours of running a “general practitioners” legal practice. We sit down and commence a jurisprudential debriefing of the day’s business.

ABM: “I’m knackered.”

MC: “I’m no’ playin’ anymore.”

JMH: “ I’m jumping out the window.”

ABM: “You’ll need a parachute.”

JMH: “How about a paralegal?”

MC: “Whit’s that?”

Thus, a partners’ meeting arrives at the unanimous decision to advertise for fresh blood to assist in our overburdened domestic conveyancing department.

The previous month’s Journal is quickly located. Three partners scan the adverts for solicitors/paralegals and embark on an in-depth costing/number crunching of salaries in the 21st century.

ABM: “My God, is that what they get paid?”

JMH: “I’m applying for those jobs.”

MC: “We can only afford half a solicitor.”

JMH: “What half will we get?”

Undecided on how to proceed, the partners decide to advertise for a solicitor or paralegal. The meeting adjourns.

Two weeks later the partners congregate for evening interviews with prospective applicants. (As partners in similar practices will be aware, such practices do not have time for these matters between 9am and 5pm.)

We read through the CVs. Each applicant seems to be a cross between Donald Findlay, Daley Thompson and Oprah Winfrey. Regretfully, each interviewee has little experience, and wishes details of when they could expect assumption as profit sharing partners.

Enter the final applicant. Middle aged lady wearing overcoat, flipflops and carrying a shopping bag. Our first meeting with Eleanor, our new paralegal. Before us is a lady with 20 years’ conveyancing experience, who handles a caseload which would frighten the French, designs websites for fun, does her own typing and offers to do our executries in her “slack time” in the office. We offer her the position.

Almost two years down the line we are now able to reflect on engaging a paralegal. We had just invested heavily in new technology and the dinosaurs in our practice (both solicitors and administrative staff) were playing catch-up. Assistance was required in the processing of routine conveyancing. Eleanor dovetailed perfectly into that environment, bringing a lifetime’s conveyancing and administrative skills to the office, and assisting greatly in unravelling the mysteries of Microsoft to us. On reflection, we could have taken on a young solicitor but that would have been wrong. Paralegals and solicitors bring different skills and fulfil different roles in a practice. Our position was more suited to a paralegal.

However, it is important to appreciate the differing roles and skills that solicitors and paralegals fulfil in a practice.

• A solicitor is not a paralegal.
• A paralegal is not a solicitor.
• One is not a substitute for the other.

However, if you team up a good solicitor with a good paralegal, you achieve a team which is hard to beat.

A solicitor has to practise against a background of years of academic study of substantive law. They bring the ability to spot and solve technical problems. The paralegal, in general, comes from a background of many years “in the job”, administering files, learning “the system”, and with subsequent training, becomes a highly efficient administrator of transactions. Their respective skills complement each other and we solicitors benefit from that relationship.

We are now considering the employment of another paralegal. However, practices considering such a course of action should be wary of the term “paralegal”. We have received numerous flyers from employment agencies, offering us paralegals for interview. Many of these “paralegals” are in fact secretaries, no doubt of great merit and with many years’ standing, but without qualification and checkable work record. Eleanor, who is a member of the Scottish Paralegal Association and as such requires an employer’s certificate every year at renewal of her membership to confirm the level/grade at which she is employed, and also requires to carry out 10 hours’ CPD per annum, has sought to bring to the attention of these agencies this “mis-selling” of the term “paralegal”. Certain of these agencies have indicated that they will take on board her concerns.

I would thoroughly recommend that any firm considering employing a paralegal should contact the Scottish Paralegal Association to familiarise themselves with the term “paralegal”.

Eleanor has turned into a vital member of our firm. She is “Girl Friday”, or perhaps “Gran Friday”. For us, it has worked out perfectly, and JMH, readers will be glad to know, has stepped back a few inches from the window ledge.

Alan Blair Murray is a partner in Murray Hamilton & Chalmers, Bellshill

Risk management and paralegals

Consider the following case studies:

A firm acted on behalf of Mrs A in the purchase of heritable property. Owing to an oversight, the existence of an outstanding inhibition against the seller was not noticed. The inhibitor raised an action for reduction of the disposition to Mrs A and a standard security in favour of her lender.

A claim was made by the principal beneficiary of an executry estate, the bulk of which comprised quoted investments. The beneficiary alleged that there had been undue delay in selling the investments, resulting in a material reduction in the amount he received from the estate. After investigation, it was established that the beneficiary’s claim was justified and, following negotiation with his agents, a payment was made in settlement.

Following the departure of a fee earner, his files are redistributed between two other fee earners. Some days later, one of the fee earners advises you that she has come across several personal injury files that appear to be time barred.

These case studies may be familiar. They have featured in the last two years in the monthly articles on risk management in the Journal. When you read through them, did you form a picture in your mind of who might have been responsible for the critical error or omission which resulted in the claim? Did it cross your mind that it might have been a paralegal, rather than a partner, assistant or trainee?

Firms may overlook the extent to which paralegals, as with support staff, are a component of the firm’s risk profile and need to be factored in to risk management training and other arrangements. Effective risk management systems recognise that all personnel within a firm, from senior partner to the office junior, have a part to play in minimising the risk of claims and complaints.

Are the paralegals in your firm fully aware of the firm’s current risk management systems and procedures? This has to be the starting point for risk management training. It is all too easy for assumptions to be made about what paralegals do and do not know, or need to know, about these systems and procedures.

A risk management training plan should be devised for paralegals as for partners, assistants and trainees. The plan might cover:

• general risk awareness training;
• risk management training for support staff;
• attending annual in-house workshops using the risk management roadshow materials;
• attending an in-house workshop on money laundering;
• reading the monthly risk management articles in the Journal.

Further information and guidance on risk management training plans and materials is available either direct from Marsh or from the Marsh website for the profession – www.marsh.co.uk/lawsociety. All practices in Scotland have been given a username and password for the website – if you have forgotten yours, please contact the author!

Firms may also make assumptions about the technical knowledge possessed by paralegals. If a paralegal is employed to carry out domestic conveyancing work, is it assumed that he or she is also competent to carry out the occasional commercial conveyancing transaction which the firm takes on? It may be feasible to make that assumption with an assistant who is a qualified lawyer – but with a paralegal? Do you know the nature, extent and content of the training your firm’s paralegals have received to gain their qualifications? From a risk management perspective, knowing what your firm’s paralegals know, and what their experience and capabilities are, (a) avoids the risks inherent in giving them work which is outwith the area of their experience and expertise, and (b) allows the firm to assess and plan their technical training needs.

Some firms, when they advertise for qualified assistants, make it a requirement that they are expected to work on their own initiative and that they must be able to work with no or minimal supervision. Does your practice lay down similar requirements for the employment of paralegals? Encouraging a sense of personal responsibility and initiative by empowering paralegals in their daily work may be a laudable objective in general. However, this should not become an excuse to let paralegals “just get on with it” and to fail to supervise them at all. For example, it is difficult to see how the personal injury case study mentioned above could have occurred with effective supervision.

Are the files handled by paralegals included in the files which are subject to the firm’s file audit procedures? If not, why not? There can be no good reason from a risk management point of view for their omission. At the very least, firms will be able to gain basic information about the extent to which paralegals understand and apply the firm’s risk management systems and procedures in their daily work – which brings us back to the points made earlier in this article about the need to avoid making assumptions about what paralegals know and the requirement for ongoing risk management training.